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Gujarat High Court · body

2015 DIGILAW 1219 (GUJ)

BHANVARSINH MANSINH KHENGAROT v. STATE OF GUJARAT

2015-11-30

RAJESH H.SHUKLA

body2015
JUDGMENT : RAJESH H. SHUKLA, J. 1. Present appeal is directed against the impugned judgment and order rendered in rendered in Sessions Case No. 94 of 2010 by the learned Additional Sessions Judge, Ahmedabad (Rural) dated 16.04.2012 recording conviction of the appellant-accused for the offence punishable under Sections 306, 323 and 509 of the IPC imposing sentence and fine as stated in detail in the impugned judgment and order. 2. The facts of the case briefly summarized are as follow:- The complainant was residing at the police line, Ranip with his family. However, on 03.03.2005 when he was on duty at Sabarmati Police Station, the appellant-accused in a drunken condition is stated to have knocked the door of the complainant and insisted to open the door to the wife (victim), which was inclined. Since, it was insisted, a hue and cry was raised and people had gathered and ultimately the appellant-accused was taken to his house. The complainant-husband on the next day tried to make the accused understand to have over the incident, but the appellant-accused is stated to have beaten him. Thereupon, the complainant, his wife (victim) and children were under pressure about the harassment of the appellant-accused and the complainant is stated to have proceeded for giving complaint. It is this incident with regard to the attempt to outrage the modesty of the victim wife of the complainant, as it affects the self respect and self-esteem led her to commit suicide on the 05.03.2005. Therefore, the complaint came to be lodged with the Sabarmati Police Station being FIR C.R.No.182/2005 for the aforesaid offences. 3. After investigation was over, the charge-sheet was filed and as the offence are triable by the court of Sessions, the case was committed to the Sessions Court, Ahmedabad (Rural). Thereafter, the learned Sessions Judge, Ahmedabad (Rural) framed the charges for the offences and proceeded with the trial. 4. In order to bring home the charges levelled against the appellant-original accused, the prosecution examined the witnesses including the complainant, his daughter etc. and also produced documentary evidence, which shall be referred to in the judgment hereinafter. 5. After recording the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, Ahmedabad (Rural), recorded further statement of the accused under Section 313 of Code of Criminal Procedure. The defence has also examined the defence witnesses. 6. and also produced documentary evidence, which shall be referred to in the judgment hereinafter. 5. After recording the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, Ahmedabad (Rural), recorded further statement of the accused under Section 313 of Code of Criminal Procedure. The defence has also examined the defence witnesses. 6. After hearing learned APP as well as learned Advocate for the accused, the learned Additional Sessions Judge, Ahmedabad (Rural) recorded the conviction of the appellant-accused and sentence as stated hereinabove. 7. It is this judgment and order which has been assailed on the grounds stated in detail in the memo of appeal, inter-alia, that the learned Additional Sessions Judge, Ahmedbad (Rural) has failed to appreciate the material and evidence on the record. 8. Heard learned Advocate Ms. Dharitri Pancholi for H.L.Patel Advocates for the appellant-accused and learned APP Shri H.L. Jani for the Respondent-State. 9. Learned Advocate Ms. Dharitri Pancholi for the appellant-accused referred to the testimony of complainant at Exh. 30 and complaint at Exh.31. She has also referred to the testimony of the other witnesses. Learned Advocate Ms. Pancholi submitted that there is no nexus between the incident and the suicide committed by the victim wife of the complainant. She submitted that there has to be cause and it has to be established. She submitted that in the facts of the present case, merely because the appellant-accused is stated to have knocked the door of the victim at late night, cannot be accepted as a kind of situation, which would compel her to commit suicide. She further submitted that as it transpires from the evidence particularly from the testimony of the complainant at Exh.30 that the victim was sensitive and therefore, she might have overreacted. She therefore submitted that ingredients for the offence which required intentional instigation, cannot be said to have been fulfilled. For that purpose, she has referred to Section 306 of the IPC and submitted that before the offence of 306 of the IPC could be attracted, the mes ria has to be established. She also submitted that in any case, there was sufficient time of more than 36 hours, by which she could have cool down and to balance herself. Therefore, learned Advocate Ms. Pancholi submitted that the conviction recorded by the Court below for the offence punishable under Section 306 of the IPC, cannot be sustained. She also submitted that in any case, there was sufficient time of more than 36 hours, by which she could have cool down and to balance herself. Therefore, learned Advocate Ms. Pancholi submitted that the conviction recorded by the Court below for the offence punishable under Section 306 of the IPC, cannot be sustained. She has also referred to the judgment of the Hon’ble Apex Court reported in (2010) 1 SCC 750 in the case of Gangula Mohan Reddy Vs. State of Andhra Pradesh. She pointedly referred to the observations made by the Hon’ble Apex Court in this judgment including the observations made in para No.19. She emphasized the observation made in Para No.11, which refers to the abatement as provided under Section 107 of the Code of Criminal Procedure. She emphasized the observations made in Para No.19, which refers to the aspect of ‘instigation’ and ‘goading’. She submitted that as observed, “abatement involves a mental process of instigating a person or intentionally aiding a person in doing of a thing.” Learned Advocate Ms. Pancholi submitted that in the facts of the case, it cannot be said that there is any such positive act of instigation on the part of the accused to instigate the victim to commit suicide and therefore, the conviction as recorded for the offence punishable under Section 306 of the IPC, may not be sustained. 10. Learned Advocate Ms. Pancholi alternatively submitted that considering the background of the case, while maintaining conviction, at least sentence may be reduced to 5 years in stead of 7 years. 11. Learned APP Shri H.L. Jani for the Respondent-State referred to the testimony of the complainant at Exh.30 and his complaint at Exh.31. He referred to the testimony of the daughter of the victim and complainant P.W. No.10 at Exh.34 and also the testimony of the neighbour P.W. No.9 at Exh.33. Learned APP Shri Jani referred to the background and the manner in which the incident has occurred and he strenuously submitted that as it transpires the act was intentional and also there were repeated attempts. Thereafter, at about 12 o’clock at late night, the appellant-accused knocked the door of the victim in a drunken condition, knowing that her husband is outside and he is on duty. Thereafter, at about 12 o’clock at late night, the appellant-accused knocked the door of the victim in a drunken condition, knowing that her husband is outside and he is on duty. He submitted that complainant and the appellant-accused both are serving in the police department and the appellant is found to have behaved in such a drunken condition itself reflects the attitude. He further submitted that when the husband tried to make understand the accused on the next day, he was also beaten. This action reflecting the conduct and attitude of the appellant-accused. Learned APP Shri Jani submitted that normally a person would not commit suicide, however, it depends upon the circumstances. He submitted that in case of woman, self-respect and self-esteem would be more relevant. As could be seen from the suicide note produced at Exh. 27 that she did not desire and left her family, and ultimately she had to take this step. Learned APP Shri Jani therefore submitted that she has also referred to the same aspect about her self-esteem and self-respect and the harassment by the accused affecting her modesty. Learned APP Shri Jani therefore submitted that the appellant-accused does not deserve any sympathy. 12. Learned APP Shri Jani also referred to the papers and submitted that as could be seen from the Panchnama of the arrest produced at Exh.47, he was arrested as back as on 12.04.2010 as he was absconding. He further submitted that the appellant-accused is originally from village Padosoli, Taluka Dudu, Dist. Jaypur, Rajasthan and he was involved in another offence there and the same was registered with Dudu Police Station, Dist. Jaypur, Rajasthan being FIR C.R.No.I281/ 2009. He therefore, submitted that considering the background of the facts and the conduct of the accused, the prayer for modification of sentence may also not be considered. 13. In view of these rival submissions and having perused the entire material and evidence, whether the present appeal deserves consideration or not. 14. As it transpires from the material and evidence on the record, the victim wife has committed suicide, as the incident occurred at 12 o’clock night, when the accused knocked the door of the victim and called her out, which was declined. 14. As it transpires from the material and evidence on the record, the victim wife has committed suicide, as the incident occurred at 12 o’clock night, when the accused knocked the door of the victim and called her out, which was declined. The people had gathered, which would a shameful situation for the victim and therefore, as reflected in the suicide note at Exh.27, she has clearly indicated about embarrassment as well as the mental agony. She has clearly stated about modesty, self-esteem and self-respect. It is in this background, the submissions made by learned APP Shri Jani are required to be appreciated. The submissions made by learned Advocate Ms. Pancholi that there is no direct nexus between the incident and the modesty, cannot be readily accepted, inasmuch as, it is this incident, which has led the victim to commit suicide out of the embarrassment and the probable slur on her character. Further, there was similar incident earlier, which is said to have been repeated. Though, the submissions have been made that there is no independent witness about such incident or repetition of incident, the same is devoid of any merits. The daughter of the complainant P.W. No.10 at Exh. 34 has clearly stated corroborating the testimony of the complainant at Exh.30. Therefore, it cannot be said that the act was not intentional. A person residing in a police line and working in police force knocks the door at late night in a drunken condition of the neighbour’s house asking a woman to come out, refers to his conduct and the intention. Not only that but when the complainant husband on the next day tried to make him understand about the situation to avoid any further repetition, he was assaulted. Therefore, the say about the head strong attitude, which caused some kind of apprehension or fear, is justified. Further, as rightly submitted by learned APP Shri Jani that it is the state of mind, which ultimately led the person to take extreme step of committing suicide, there cannot be any straitjacket formula. The submissions which have been made by learned Advocate Ms. Pancholi about sensitiveness that the deceased was sensitive and overreacted, also cannot be believed. In fact, a woman would be more sensitive on such issue, which is normal conduct and therefore, it can hardly be said that she has overreacted. The submissions which have been made by learned Advocate Ms. Pancholi about sensitiveness that the deceased was sensitive and overreacted, also cannot be believed. In fact, a woman would be more sensitive on such issue, which is normal conduct and therefore, it can hardly be said that she has overreacted. It is in this background, the submission made by learned Advocate Ms. Pancholi that the ingredients for the offence punishable under Section 306 of the IPC about abatement to suicide would not be attracted or fulfilled, is misconceived and cannot be accepted. 15. The word ‘Suicide’ has been considered by the Hon’ble Apex Court in a judgment reported in (2010) 1 SCC 750 in the case of Gangula Mohan Reddy Vs. State of Andhra Pradesh. The Hon’ble Apex Court has observed in this judgment that the word ‘suicide’ is not defined in the Indian Penal Code. However its meaning and import is well known. The word means ‘self’ and ‘suicide’ means ‘killing’. In other words, the act must have been so intended to push the deceased in a situation that the deceased is driven to commit suicide. 16. The aforesaid judgment, which has been relied upon by learned Advocate Ms. Pancholi also refers to the fact that there cannot be any universal rule or straitjacket formula. In fact, the observations made by Hon’ble Apex Court in Para No.19 of the said judgment reported in (2010) 1 SCC 750 , it has been observed that, “Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straightjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.” The same view has been reiterated in a judgment reported in (2015) 9 SCC 639 in the case of State of Kerala and Ors., Vs. S. Unnikrishnan Nair and Ors., quoting the earlier judgment of the Hon’ble Supreme Court reported in (2012) 9 SCC 374 in the case of Praveen Pradhan V. State of Uttaranchal, wherein it has been quoted that:- “18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot for a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 CrPC. 19. Thus, the case is required to be considered in the light of the aforesaid settled legal propositions. In the instant case, alleged harassment had not been a casual feature, rather remained a matter of persistent harassment. It is not a case of a driver; or a man having an illicit relationship with a married woman, knowing that she also had another paramour; and therefore, cannot be compared to the situation of the deceased in the instant case, who was a qualified graduate engineer and still suffered persistent harassment and humiliation and additionally, also had to endure continuous illegal demands made by the appellant, upon non-fulfillment of which, he would be mercilessly harassed by the appellant for a prolonged period of time. He had also been forced to work continuously for a long durations in the factory, vis-a-vis other employees which often even entered to 1617 hours at a stretch. Such harassment, coupled with the utterance of words to the effect, that, ‘had there been any other person in his place, he would have certainly committed suicide’ is what makes the present case distinct from the aforementioned cases. Considering the facts and circumstances of the present case, we do not thing it is a case which requires any interference by this Court as regards the impugned judgment and order of the High Court.” 17. Considering the facts and circumstances of the present case, we do not thing it is a case which requires any interference by this Court as regards the impugned judgment and order of the High Court.” 17. It is in these circumstances, it cannot be said that there is any error in the findings and conclusion arrived at by the Court below, as this Court is in broad agreement with the reasons and findings and conclusion arrived at by the Court below, it does not call for any interference. 18. The another aspect which has been pressed is with regard to modification of sentence while maintaining conviction. Though, learned Advocate Ms. Pancholi has strenuously submitted for modification in sentence referring to proportionality, it may not be readily accepted in background of the facts and circumstances, reflecting the conduct of the appellant-accused as stated in detail hereinabove. The conduct of the appellant-accused is such, which would not justify any indulgence, even with regard to modification of sentence. The doctrine of proportionality in sentence has been evolved by the judicial pronouncements. The Hon’ble Apex Court laid down the principle with regard to approach with reference to different criteria like the gravity of the offence and the manner in which the offence has taken place. Therefore, while considering the gravity of the offence, the plight of the victim and cry of the society for justice has to be considered. The Legislature has also made provisions providing for minimum sentence. It is in these circumstances, in some cases the words used for prescribing the sentence are “not less than”. In other words, it casts obligation on the Court to impose proper punishment in the interest of the society so that the faith and confidence of the people in the Criminal Justice System is not shaken. A useful reference can be made to the observations made by the Hon'ble Apex Court in a judgment reported in Siriya alias Shri Lal v. State of M.P., reported in AIR 2008 SC 2314 , wherein it has been observed that:- “Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of “order” should meet the challenges confronting the society. Therefore, law as a cornerstone of the edifice of “order” should meet the challenges confronting the society. Friedman in his “Law in Changing Society” stated that, “State of criminal law continues to be – as it should be – a decisive reflection of social consciousness of society.” Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.” 19. In the result, present appeal deserves to be dismissed and accordingly stands dismissed. The impugned judgment and order rendered in Sessions Case No. 94 of 2010 by the Additional Sessions Judge, Ahmedabad (Rural) Court recording conviction of the appellant-accused for the offence punishable under Section 306, 323 and 509 of the IPC is hereby confirmed. Bail bond shall stand cancelled. At the request made by learned Advocate Ms. Dharitri Pancholi, the time to surrender before the concerned Jail Authority is granted up to 8 weeks.